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Texas in Court

If ever a case cried out for Congressional redistricting to be carried out each decade by an Iowa-style nonpartisan commission, it would be the Texas case being heard today by the Supreme Court.

That state’s mid-decade, highly partisan gerrymander is under challenge for allegedly violating the Constitution and the Voting Rights Act. We have no idea how the court will rule — or should rule. But we believe it would be a good thing if politicians stopped themselves from conducting redistrictings more than once a decade. Conceivably, the high court could sustain Democratic charges that Texas’ 2003 map violated the Equal Protection Clause of the Constitution because it was based on outdated U.S. census data that failed to account for population growth, chiefly among Hispanics.

On the other hand, Republicans argue that the state Legislature, which is mandated by the U.S. Constitution to determine the manner of holding elections, never drew a map between the completion of the 2000 Census and enactment of the 2003 plan. The map that governed the 2002 election was drafted by a federal court when the Legislature, then under divided control, deadlocked on the matter. A 2002 GOP takeover of the state House, in a campaign engineered by former House Majority Leader Tom DeLay (R-Texas), made possible the redraw that’s now under Supreme Court review.

Whether the Supreme Court finds grounds to rule against a mid-decade reapportionment — and despite a long-standing tradition, there is no federal law barring such intra-decade redistrictings — the need for restraint is evident in another case not currently under Supreme Court review. This year, the GOP-controlled Georgia Legislature, after already modifying an admittedly gerrymandered Democratic Congressional map last year, is attempting to tweak its state legislative boundaries for purely partisan reasons. Unless checked somehow by the Supreme Court, there is nothing to stop states from redistricting every time one party or the other thinks it can cement itself in power, even once every two years. Ohio legislators, after all, redistricted before the 1878, 1880, 1882, 1884, 1886 and 1890 elections. But following that example surely would be a perversion of the democratic process.

What’s indisputably true is that there are now six fewer Democrats and six more Republicans in the delegation and that partisanship was the sole reason for the mid-decade remap. Democrats charge that this violates the Constitution. Republicans say that it reverses a Democratic gerrymander in 1991 that the lower court’s 2002 map left in place, resulting in a delegation split 17-15 Democratic even though 59 percent of Texas voters supported GOP candidates.

In a 2004 case, the Supreme Court sustained a Pennsylvania gerrymander by a 5-4 vote, but Justice Anthony Kennedy indicated that he would vote differently if a standard of fairness could be established. If the Supreme Court acts, it has to be mindful of the fact that this is an election year and that another remap might provoke chaos. In fact, Texas holds its primaries next week.

There is a slow-moving effort among the states toward nonpartisan redistricting solutions that will redraw boundaries either in a politics-blind fashion or in one geared toward maximizing, within reason, competition between the parties. Whatever the Supreme Court does with Texas, we’d hope that its decision will give that movement a kick-start.

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